BREAKING: Rittenhouse Judge Makes Decision on Gun Charge

Mark Hertzberg/Pool Photo via AP

I wrote earlier today about the problems with the gun charge in the Rittenhouse case and that it could be dismissed because Kyle Rittenhouse didn’t meet all the elements of the charged statute.

Under Section 948.60(2)(a) (“Possession of a dangerous weapon by a person under 18”), [a]ny person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.

The problem was subsection (c), as my story explained:

This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593.”

Since there is no evidence that Rittenhouse violated Section 941.28, he presumably must be in violation of both sections 29.304 and 29.593. The defense conceded Rittenhouse was in violation of Section 29.593, which requires certification for weapons. However, he is not in violation of section 29.304, entitled “Restrictions on hunting and use of firearms by persons under 16 years of age.” As the title indicates, the section makes it illegal for persons under 16 to use firearms. Rittenhouse was 17 at the time and the prosecution has not challenged that fact.

Now since it didn’t meet 941.28, i.e. that it was a short-barreled gun, then it has to satisfy the other part — that he have no certification and that he be in violation of the restrictions on hunting and use of firearms while being under 16. While he had certification, he wasn’t under 16. So it was a strangely drafted law, applying to those under 18 but then effectively not applying to anyone between 16 and 18 unless they had a short-barreled gun.

The judge pressed the prosecution this morning if they had any further proof to present that this gun was in any way short-barreled — which it wasn’t. The prosecution had nothing they could say since they knew that they didn’t have any evidence to support the elements of the charge. So the judge just dismissed the gun charge.

Now we’ll have to see what happens as regard to the jury instructions and closing arguments today. But if the jury then finds there was self-defense and doesn’t believe the prosecution’s last attempt to obscure the facts with claiming provocation by Rittenhouse, then that could be it. But the judge did rule to allow the prosecution to argue provocation which could put the self-defense claim in jeopardy if the jury is taken in by the prosecution’s claim.